City of Rocky River v. State Employment Relations Board , 43 Ohio St. 3d 1 ( 1989 )

Holmes, J.,

dissenting. Seldom, if ever, have I observed an author of an opinion reach out peripherally in so many directions in an attempt to authoritatively support an untenable legal position. The reader is inundated with a multitude of citations and a bulk of material running the gamut of quotations from historically well-known United States Supreme Court Justices and legal scholars to citations from Ohio newspaper editorial comment.

In reaching out for case material to bulwark his position, the author leads us through a tortuous path of United States Supreme Court opinions ranging from extradition law through commerce law to civil rights law, presenting in effect something for everyone. Basically, he cuts a piece of the American legal pie for everyone to consume — everyone, of course, except the municipalities and their officials from whom he has yanked the mantle of home-rule powers granted by Section 3, Article XVIII of the Ohio Constitution (and from the citizenry who must pay the tab of government).

The author of this opinion initiates us with the broad blast that “the moment has now come to place at rest the issue presented by this case.” This the now minority of the court thought had been done by the prior majority of this court in the first Rocky River opinion of Chief Justice Moyer. The events that have transpired since that opinion have shown that the now majority considered such prior determination to be only a conditional order of the court — conditioned, that is, upon the later constituted panel of this court. What gossamer fabric with which to sew up our jurisprudential garment!

The author vaults over the procedural morass of this case by stating in effect, “ ’nuff said.” However, enough cannot-be said of the roughshod plowing asunder of the regulations and past procedure of this court in order to again reach the merits of this case by a more favorably inclined panel. Upon the procedural aspect of this case, in addition to re-embracing my comments in dissent upon the motion for reconsideration published in 41 Ohio St. 3d 602, 605-610, 535 N.E. 2d 657, 660-664, I add the following.

This case had been determined by the prior majority of this court in the opinion and judgment issued on November 2, 1988. On November 14 motions were filed by the appellees, in accord with Section 1, Rule IX of the Supreme Court Rules of Practice, for a rehearing of the matter. One of the movants, in the alternative, asked for a clarification of the opinion as issued.

The motions for rehearing were denied by entry of the court dated December 22, 1988. Although not required to do so, the Chief Justice, who had written the prior majority opinion, set forth in such court order denying a rehearing a clarification of the prior opinion. Under no reasonable interpretation of the court rules could this be considered a granting of a rehearing, or considered as establishing a new date from which yet another motion for rehearing could be filed.

Additionally, the position of the author of the majority opinion that the motions of the appellees could be considered as motions for reconsideration is pure sophistry. In the first instance, this court has no such rule providing for a motion for reconsideration as have the courts of appeals. Secondly, without such a rule, the majority’s sua sponte allowance of such a motion as was done here is purely and simply unlawful, not just an abuse of discretion.

Relative to the reliance of the majority upon Section 34, Article II as being the fount from which their opinion flows, I merely shall reply, nonsense! This argument has been rejected by this court upon a number of occasions. Such section was not meant to override the home-rule provisions of Section 3, Article XVIII. As to this area of the majority opinion, I join in Justice Wright’s dissent.

As to the major issue presented within this case, that of the applicability of the home-rule provisions to these negotiations for salaries for safety forces, I again embrace the law as enunciated by Chief Justice Moyer within the original Rocky River opinion.

For all the above reasons, I dissent.